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Haley Barbour’s Late Rush to Pardon

01.18.12 2:34 AM ET

Was Haley Barbour more right than wrong?

The Mississippi governor sparked a firestorm during his last days in office earlier this month by granting clemency (and mostly full pardons) to 215 convicts, including 26 who were still imprisoned and 27 who were convicted of murder or manslaughter. It was a late rush to pardon for Barbour, who had granted clemency in just eight cases in his eight years in office.

The former governor said last week that many of the pardons he granted were to people who had asked for them during his first term, but that he and his staff had been too busy then with the recovery from Hurricane Katrina to act on those requests. What seems more likely is that he hadn’t been willing to do the right thing until he’d been term-limited out of the statehouse and decided not to run for president, effectively retiring from elected politics.

Politicians have reason to be fearful of losing support if they’re considered “soft on criminals.” Remember Willie Horton? Maurice Clemmons? Michael Dukakis and Mike Huckabee sure do.

While Barbour defended his actions as “rooted in the Christian idea of giving second chances,” the uproar—fueled by family members of murder victims, members of the judiciary and elected officials who are challenging several of the pardons on technical grounds and calling for changes to the law to limit future governors from such acts of mercy—has yet to die down.

But while Barbour’s brave decision may fly into prevailing political winds, it’s in line with an emerging new sentiment about prison reform. In the last five years a noted journalist, two legal scholars, and an American studies professor have all published important books that tend to support the governor’s surprising choice. All four books posit that our system of criminal justice has grown far too punitive and racist—making clemency one suitable method of redress.

Wall Street Journal Atlanta Bureau Chief Douglas A. Blackmon’s Pulitzer Prize–winning Slavery by Another Name: The Re-Enslavement of Black Americans From the Civil War to World War II; American studies Professor Robert Perkinson’s Texas Tough: The Rise of America’s Prison Empire; Michelle Alexander’s The New Jim Crow; and William J. Stuntz’s The Collapse of American Criminal Justice, all take slightly different routes to the same end. Since the end of Reconstruction, the authors argue, the American prison-industrial complex has politicized and perverted our criminal-justice system to the point that our Founding Fathers (who viewed clemency as a way to mitigate the hand of a sometimes overly harsh judiciary) might have trouble recognizing it today.

Barbour seemed to reach back to that tradition at a news conference last week, where he said of the pardons and other commutations: "The power of the governor offsets the power of the judiciary."

We could use the offsetting. America now has the dubious distinction of housing the largest prison population in the world—both per capita and in raw numbers. (Our only competition: North Korea). Over the past 40 years, the American system has become harsher, doling out more and longer doses of “justice,” mostly to citizens who pose no real, physical danger to society. By locking up these addicts and low-level drug dealers filling their respective roles in a simple supply-and-demand equation, along with other needless charges of the state, we now have a penal system that’s literally bursting at the seams.

Clemency alone is not going to make much of a dent in America’s prison population. Defending his actions, Barbour noted that the 26 people he released from jail amount to about .1 percent of all those incarcerated.

But perhaps the bold move by the conservative southern-state governor signals the dawning of a new reality in regards to incarceration. The question posed by Newark Mayor Cory Booker, a Democrat, goes something like this: How can true conservatives—who love liberty, believe in smaller, less intrusive government, and are advocates for fiscal restraint and lower taxes—constantly approve the profligate budgets currently in place in most states to support what has turned into the American gulag?

Clemency may be an inherently subjective process, easily bent by political and financial pressures and by no means immune to the race- and class-tinted decision making that characterizes our justice system. But for all its flaws, we need it and other mechanisms to temper justice with mercy.

Past that, the question remains about what an ex-convict owes after paying his or her debt to society. Barbour said that the approximately 90 percent of his pardons that went to people who were no longer in custody “were intended to allow them to find gainful employment or acquire professional licenses as well as hunt and vote.” If that seems uncontroversial, recall that Republicans at Monday’s debate in Myrtle Beach applauded Mitt Romney when he said that violent convicts should permanently lose their right to vote, even after they’ve served their time.

Releasing some prisoners—those who no longer pose a danger or threat to society, including both drug offenders and some perpetrators of “crimes of passion” who are unlikely to repeat those acts—won’t be wildly popular with all constituents, but it might be a prudent thing for governors to begin considering, given the post-2008 budget realities that have left the prisons once considered a jobs boon now rightly recognized as cash drains.

The question we Americans might have to revisit through the lens of fiscal sanity, to say nothing of human compassion and mercy: just how long is long enough?